EU to Rule the High Seas?

MANY maritime officials and shipping industry representatives will have spent the past few days poring over the United Nations Convention on the Law of the Sea 1982 (UNCLOS).

The reason for the sudden interest is a proposal, announced last week by the European Commission (EC), that owners and officers of ships suspected of causing pollution on the high seas, that is to say outside the 12-mile territorial seas recognised by UNCLOS, should be prosecuted by the EU member states when they enter European ports.

The proposal is one of a package announced by top EC transport official Loyola de Palacio. An EC statement said: 'The European Commission today adopted a proposal which will lead to the imposition of criminal sanctions on those responsible for pollution by ships.'

Mrs Palacio, the Commission's vice-president responsible for transport and energy policy, said: 'A measure of this type is particularly important in shipping, as the existing civil liability regimes for pollution by ships do not provide sufficient financial disincentives for shipowners and others involved in the transport of dangerous cargoes by sea to behave in the most responsible way.'

That statement has had many in the industry close to despair at what they see as the EC's inability to grasp the realities of the shipping industry and an opportunist hostility to shipping.

Most particularly Mrs Palacio's words will grate with owners and ship masters who are only too well aware of the existing criminal sanctions for pollution.

Although some of the EU states have not yet got their act together as far as detecting and prosecuting polluters, in the UK, for example, the discharge of oil within the territorial sea is an absolute offence. Offenders face the possibility of unlimited fines and imprisonment. Nobody has gone to jail yet but the UK's Maritime and Coastguard Agency does successfully prosecute on a very regular basis.

Mrs Palacio wants sanctions to be applicable to 'any person - including the master, the owner, the operator and the charterer of a ship and to the classification society - who has been found to have caused or contributed to illegal pollution intentionally or by means of gross negligence'.

Funnily enough in one sense, the EC proposals are weaker than the regime imposed now in UK waters in that criminal sanctions apply whether or not the pollution was intentional or the result of gross negligence. But shipping industry representatives also bridle at the idea that there is no financial disincentive at present not to have an oil spill, particularly as the result of a casualty. The international oil spill compensation regime is based on absolute liability with no need to prove negligence.

Then there is the matter of the high seas.

The EC says that it is trying to stop the 'thousands of deliberate discharges of waste and cargo residues from ships at sea around Europe'. The proposed EC directive provides detailed rules for the discharge of polluting substances, including oil and chemicals and makes any violation of those rules illegal in EU waters. Most controversially, it also prohibits pollution on the high seas, irrespective of the flag of the ships and directs EU states to take on powers to prosecute in such cases.

Mrs Palacio said: 'The inclusion of the high seas is necessary, since pollution of the seas does not recognise artificial borders and since many (EU) member states do not even have a 200-mile exclusive economic zone.' She added that the proposed directive will fill significant regulatory gaps in EU regulation and will go a long way in establishing a culture of responsible shipping in EU waters and beyond.

The EC statement contains the following note: 'The possibility to investigate and prosecute discharge offences in the high seas is provided for in Article 218.1 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS).'

So does that mean that a Singapore-flagged ship putting into Rotterdam could be prosecuted for an alleged illegal discharge off Tierra del Fuego? Common sense ought to dictate that it would not but I have looked in vain in the text of the draft directive for any qualifications on geographical scope.

It just says: 'The high seas.' And while UNCLOS Article 218.1 appears to support the EC contention, it is qualified considerably by Article 218.2 and 218.3. To a lay eye it would seem that the EC may be stretching UNCLOS further than it can go, but no doubt the international lawyers will soon be on the case.